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As American businesses begin to reopen after strict government shutdowns aimed at slowing the spread of COVID-19 (coronavirus), many employers are encountering employees who refuse to return to work. Whatever the motivation – high unemployment benefits, family benefits or fear of infection – it is important for employers and employees to understand their rights… and consequences.

Layoff v. Furlough

First, at the onset of the government restrictions, many employers were faced with a decision to either layoff or furlough employees. A layoff is an involuntary separation between an employer and an employee that occurs through no fault of the employee. Typically, layoffs occur when there is not enough work. A furlough is considered to be an alternative to a layoff. It can be administered in different ways, such as a reduction in work hours or a requirement for the employee to take a certain amount of unpaid time off. However, unlike a layoff, the furloughed worker remains an employee. As such, a furlough is akin to an unpaid leave of absence. The employee is guaranteed working hours once business resumes.

When Thomas Jefferson commissioned an expedition to explore the western frontier in 1803, he called upon two men who, among other things, were valiant record-keepers. Meriwether Lewis, a secretary, and William Clark, a cartographer, spent three years exploring and documenting an unknown territory. Some of the most important things to come from the Lewis and Clark Expedition were their personal journals, which contained invaluable information used by those who followed their trail westward.

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The value of record-keeping cannot be overstated. Advanced civilizations require written language, arts, sciences and government – which all begin with record-keeping. The same can be said about business. While all businesses keep records, there is a significant difference between a cave painting and the Great Library of Alexandria. Unfortunately, some business owners remain in the stone age of record-keeping, which can create significant liability.

Both Federal and State law require employers to create and maintain employment records. This includes payroll records, employee’s name, address, occupation, hours worked each day and week, wages paid and date of payment, amounts earned as straight-time pay and overtime, and deductions. These records must be maintained for three years. [Lab.C. §§ 226(a), 1174(d), 29 CFR § 516.5]. Other records, such as time and earning cards and work schedules must be kept for two years. [29 CFR § 516.6].

The Family and Medical Leave Act (FMLA) is a federal law that provides job security to an employee who is absent from work because of the employee’s own serious health condition or to care for specified family members with serious health conditions, as well as for the birth of a child and to care for a newborn child, or because of the placement for adoption or foster care of a child with the employee. 29 USC § 2601 et seq.

The California Family Rights Act (CFRA) is the California equivalent of FMLA and provides similar protections. Gov.C. § 12900 et seq. Under FMLA and CFRA, both the mother and father are entitled to leave to bond with the newborn even if the newborn does not have a serious health condition. See 29 CFR § 825.120(a)(2).

The New Parent Leave Act (NPLA), which became effective on January 1, 2018, applies to smaller employers with 20-49 employees. (FMLA and CFRA cover 50 or more employees). Gov. C. § 12945.6. The NPLA requires employers with at least 20 employees to provide up to 12 workweeks of parental leave for eligible employees to bond with a new child within one year of the child’s birth, adoption or foster care placement.

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